State v. Lyman

• Decision Date: 24 September 1998
• Docket Number: No. 971738-CA,971738-CA
• Citation: 966 P.2d 278
• Parties: 352 Utah Adv. Rep. 13 STATE of Utah, Plaintiff and Appellee, v. Raymond Rick LYMAN, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 278

966 P.2d 278

352 Utah Adv. Rep. 13

STATE of Utah, Plaintiff and Appellee, v. Raymond Rick LYMAN, Defendant and Appellant.

No. 971738-CA.

Court of Appeals of Utah.

Sept. 24, 1998.

Rodney G. Snow, Neil A. Kaplan, and Anneli R. Smith, Clyde, Snow & Swenson, P.C., Salt Lake City, for Appellant.

Jan Graham, Atty. Gen. and Barnard N. Madsen, Ass't. Atty. Gen., Criminal Appeals Div., Salt Lake City, for Appellee.

Before DAVIS, P.J., and WILKINS, Associate P.J., and GREENWOOD, J.

OPINION

GREENWOOD, Judge:

Raymond Rick Lyman (defendant) appeals his conviction for theft of property valued at or in excess of $1000 but less than $5000, a third degree felony, in violation of Utah Code Ann. §§ 76-6-404 (1995) and 76-6-412(1)(b) (Supp.1996). We affirm the theft conviction but vacate the felony conviction and remand the case to the trial court with instructions.

BACKGROUND ¹

Defendant is a co-owner of Lifephase Fitness Center (the Center) in Cedar City, Utah. Prior to April 6, 1996, defendant generally worked at the Center on Thursdays, Fridays, and Saturdays, and was the person primarily responsible for maintenance and cleaning. Therefore it was not unusual for defendant to go into a maintenance closet (the maintenance closet) located in the basement of the Center, adjacent to the Center's tanning room.

Shortly before Friday, April 5, 1996, Michelle Komarek, an aerobics teacher at the Center, noticed a hole near an electrical outlet in the tanning room on the wall bordering the maintenance closet. Although she did not tell any of the owners about the hole, she did tell Kelvin Minefee, a police officer who was a member of the Center. After confirming the existence of the hole, Officer Minefee spoke with Paula Douglas, a secretary at the Cedar City Police Department who worked out at the Center and used the tanning room. The next morning, Ms. Douglas told Detective Ken Stapley and Chief Pete Hansen about the hole. Ms. Douglas agreed to return to the Center on Saturday, April 6, to use the tanning room. Detective Stapley then spoke with Steve Brown, a co-owner of the Center, about conducting an investigation and using surveillance equipment to determine if anyone was using the hole to observe people in the tanning room. Mr. Brown gave Detective Stapley a key to the Center to use during the investigation.

At approximately 11:00 p.m. on April 5, Detective Stapley and Officer Roy Houchen set up surveillance equipment in the maintenance room. Detective Stapley observed that the hole was beneath a power outlet and that, on the maintenance room side, one had to remove a wood shelf and get down on one's hands and knees in order to see it. If the wood shelf was not set down carefully when moved, it would probably make a "very loud noise." Except for a shiny new extension cord, the surveillance equipment was concealed behind carpet remnants and pieces of sheetrock. No one unfamiliar with the room would have noticed anything suspicious.

Detective Stapley returned to the Center at about 8:30 a.m. on April 6 to activate the equipment. He saw one person in the cardiovascular room but made sure nobody saw him.

Stacie Bradshaw, an aerobics instructor, arrived at the Center between 7:30 and 8:00 a.m. on the 6th. She testified that no one else was there when she arrived. Defendant arrived somewhere between 8:00 and 9:00 a.m.

When Ms. Douglas arrived at about 9:30 a.m., defendant was at the front desk. On her way to the weight room, Ms. Douglas saw a man, Chris Delahunty, repairing carpet. After about thirty-five minutes, she went back to the front desk and asked defendant if she could use the tanning room, as she usually did on Saturdays. When she got to the tanning room, Ms. Douglas turned on the fan and radio and then used the bed. About seven to ten minutes later, she heard a bang from the maintenance room. She tanned for a total of twenty minutes. After she left the tanning room, she walked through most of the rooms in the Center and noticed that defendant's truck was gone. When she left the Center at 11:05, defendant's truck was still not there.

Chris Delahunty, defendant's brother-in-law, arrived between 9:00 and 9:30 a.m. to do some carpet repair work. He met defendant in the hallway, close to the tanning room. Mr. Delahunty started working and saw defendant on and off. As he returned downstairs, Mr. Delahunty saw defendant enter the maintenance closet. Defendant did not stay in the closet long. Sometime between 10:30 and 10:45 a.m., Mr. Delahunty finished working downstairs and went upstairs to the aerobics room. At about 11:00 a.m., defendant entered the aerobics room carrying a bucket of spackling compound and asked if he could borrow one of Mr. Delahunty's putty knives. Shortly thereafter, defendant returned the tool and asked Mr. Delahunty to watch the front desk while defendant "skipped out" for a little while. Mr. Delahunty's wife arrived at about 11:35 a.m., shortly after defendant left. Mr. Delahunty testified that defendant was gone about half an hour.

When Detective Stapley returned to the Center at about 7:00 p.m. on April 6, some of the sheetrock pieces in the maintenance closet had been moved and all the surveillance equipment was gone. After speaking with Officer Houchen and Chief Hansen, Detective Stapley decided to talk with defendant. Detective Stapley and Officer Kelly Edwards arrived at defendant's home about 9:00 or 9:30 p.m. When Detective Stapley advised defendant of the hole and the missing surveillance equipment, defendant's first response was, "I was never in the maintenance room that day, and I don't know nothing about no hole." At least three times, defendant denied having gone into the closet that day. Defendant also initially denied leaving the Center that day, but later "changed his story and stated he left several times that day but continued to state he wasn't in the maintenance room that day."

Detective Stapley returned to the Center at around 10:30 p.m. At that time, he noticed that the hole had been spackled and that, although the tanning room side was dry, the maintenance closet side "was still damp to the touch."

At trial, Officer Houchen testified that the stolen surveillance equipment was special order equipment, all of which would fit into a small suitcase or duffel bag and weighed about twenty to twenty-five pounds. The total purchase price of the equipment was $1257.73. However, this total included $288.00 paid for a VCR on January 18, 1989, as well as $298.33 for a pinhole camera, $198.46 for a special lens, and $289.54 for a small monitor, all of which were purchased on August 10, 1995. The total purchase price absent the VCR was $969.73. When asked what the fair market value of the equipment was on the date of the theft, Officer Houchen stated that he did not know but that it would have been worth less on the date of the theft than on the date it was purchased. No other evidence as to the value of the equipment was presented. The equipment was never recovered.

Defendant was charged with one count of theft and a two-day trial was held June 30 and July 1, 1997. At the close of the State's case, defendant moved for a dismissal or directed verdict. The trial court denied the motion. After the jury found defendant guilty of felony theft, defendant filed a motion to arrest judgment. The court denied this motion as well. This appeal followed.

ISSUES & STANDARD OF REVIEW

Defendant raises two issues on appeal. He first argues that the trial court erred in denying his motion for dismissal because the State's evidence did not exclude every reasonable hypothesis of innocence and was thus insufficient to prove each element of the crime beyond a reasonable doubt. Second, defendant argues that there was insufficient evidence of the equipment's fair market value on the date it was stolen to support the felony conviction.

When reviewing a jury verdict for sufficient evidence, this court must

"review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury ... [and] reverse ... only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted."

State v. Hamilton, 827 P.2d 232, 236 (Utah 1992) (citations omitted). ²

When a conviction is based solely on circumstantial evidence, we review the evidence to determine:

"(1) whether there is any evidence that supports each and every element of the crime charged, and (2) whether the inferences that can be drawn from that evidence have a basis in logic and reasonable human experience sufficient to prove each legal element of the offense beyond a reasonable doubt. A guilty verdict is not legally valid if it is based solely on inferences that give rise to only remote or speculative possibilities of guilt."

State v. Brown, 948 P.2d 337, 344 (Utah 1997) (quoting State v. Workman, 852 P.2d 981, 985 (Utah 1993)). Thus, the "fabric of evidence against the defendant must cover the gap between the presumption of innocence and the proof of guilt." State v. Petree, 659 P.2d 443, 444-45 (Utah 1983). However, where the trial court has considered a defendant's insufficient evidence claim, as is the case here, such action " 'lends further weight to the jury's verdict.' " Brown, 948 P.2d at 344 (citation omitted).

ANALYSIS

Sufficiency of Evidence to Support Theft Conviction

In asserting his claim that there was insufficient evidence to identify him as the thief in this case, defendant argues that the only evidence presented at trial was circumstantial and that such evidence failed to exclude the alternative hypothesis that someone else stole the equipment.

It is well settled in this state that "a conviction can be based on sufficient circumstantial evidence." State v. Brown, 948 P.2d 337, 344 (Utah 1997); see also State v....